Recently, there was a video posted about a law student that refused to talk with officers, refused to give him an ID, and refused to allow them to search his person. The law student did one thing correctly – he asserted his right to be free from unreasonable police conduct. This blog will be a three-part series about how the law student was correct. This first series will focus on what the law student did right. The next post will address the different types of contacts that you may have with law enforcement and finally what to do if you are stopped by an officer.

Law Student Disobeyed the Officer. He would not give the officer his name or identification and this was legal for the law student to do. An officer has the right to come up to you and ask you questions, including your name. This is the same as any other person walking down the street. If a stranger came up to you and asked you for identification, would you feel that you needed to give it to them? The same is true in this situation. You do not have to talk with the officers.

Law Student asked if he was suspected of criminal activity. An officer may stop you if he or she believes that you have, are, or had committed a crime. This belief has to be based on a reasonable suspicion. This means the officer must have some facts, other than “I don’t know you” to support a reason for stopping you. In the video, the officer admitted that under the laws of that state, it was not illegal for the law student to possess the gun and the officer could not provide any facts that would support a reasonable suspicion of criminal activity. Basically, a law enforcement officer cannot just walk up to you because you are doing something that you are legally entitled to do and demand you to show proof that you are legally able as in this case possess a gun.

Another example would be, if you are drinking a beer at a bar, an officer cannot walk up to you and demand to know if you are on probation that would prohibit you from drinking alcohol, such is the case for many DUI convictions. There would be no bases for that question and this conduct by law enforcement is unreasonable and illegal.

Finally, towards the beginning of the video the officer conducted what is commonly called a “Terry Pat Down”. This is quick search of a person to ensure that he or she does not have any weapons on him or her. The courts allow this conduct to protect officers. The search is to be limited to the outer portions, no squeezing areas and only for weapons. The law student correctly told the officers that he would not consent to this search. If the officer has no reasonable belief that the person is a danger and there was nothing that the law student did to support the belief, this is an illegal search.

The officers was trying to get the law student to consent to the search and answering his questions. If you talk to the officer or allow the search the courts will find that the conduct was consensual. If you tell the officer that you do NOT consent to the search or DO NOT want to talk with him, this more than likely is an illegal detention. The next post in this series will talk about the different types of law enforcement contact that you could face.

Should you Refuse a Blood or Breath Test and Be Considered a DUI Refusal?

Arguably the most important piece of information in a Colorado DUI case for the prosecution is the blood alcohol content (BAC) or the drug levels. If you are arrested for Driving Under the Influence of Alcohol or Drugs you have three options:

Option 1: You can consent to test of your blood for alcohol content

Option 2: You can consent to a test of your breath for alcohol content

**If drug DUI you an consent to the test of the officers choice

Option 3: You can refuse all tests (this will be called a DUI refusal)

** Unlike with alcohol, if you are suspected of DUI of drugs the officer will ask you to take a test of your blood, urine, or saliva. You do not get to choose the test, the officer does.

EFFECT OF A DUI REFUSAL ON DMV

The Colorado DMV revokes licenses for one year, if the DMV finds by a preponderance of the evidence that the officer had probable cause to request the test and that you refused such a test (often times this is called a DUI refusal). The preponderance of the evidence standard is considerable less that beyond a reasonable doubt. It means more likely or at least 51%.

The DMV has the ability to revoke your licenses because it is an administrative action, not a criminal court action. This means that the DMV action is separate and apart from any potential court case that you may have from a DUI refusal of a blood or breath test.

EFFECT OF A DUI REFUSAL ON YOUR COURT CASE

A DUI charge is more difficult for the government to prosecute without a BAC or drug level. This is not to say that the case would not go forward with prosecution, it is just a harder case. According to our laws, if you refused a test then the jury can consider the fact that you refused the test as evidence that you were driving under the influence of alcohol or drugs. Typically, in these cases the manner of driving and reason for the stop become very important.

I AGREED TO TAKE THE TEST, WHY AM I STILL A DUI REFUSAL

Colorado’s Express Consent Law makes you do two things, if you agree to take the test. First, submit to the test and second corporate in the administration of the test. The following situations can result in the officer accusing you of a DUI refusal:

For alcohol DUI only, you have a right to choose either a blood or breath test. You may not change the test that you selected. If you choose blood you may not switch to a breath test and vice versa.

You must cooperate in the performance of the test.

You do not have a right to talk to an attorney before deciding what, if any, test to take.

For a blood test, you must agree to release of blood to the police officer, if it is drawn at a hospital.

If you, a friend, or family member is accused of DUI or a DUI refusal contact us today for a free case evaluation at (303) 747-4686 or by clicking here. Don’t assume that you have no defense, don’t pled guilty or listen to the prosecution before you call us. We will take the time to explain the process an any potential defenses that you may have.

Is It an Illegal Search for Police to Listen to Calls and Read Emails?

A core principle in our laws is that all searches, including those of cell phones, emails, and phone conversations are unreasonable, unless the search or invasion is conducted by a valid warrant. This was upheld in a recent U.S. Supreme Court Decision n Riley v. California. If police listen to your phone call or read your emails without a valid warrant it is an illegal search. It could also be an illegal search if the information used to support probable cause for the warrant was obtained from an illegal source. Meaning, if the information contained in the warrant is based on an illegal search or illegal eavesdropping, the warrant fails and thus the search and anything found after the search is inadmissible or the government cannot use it against you.

Even in light of the new ruling, there is evidence that law enforcement agencies are disregarding the warrant requirement and conducting illegal searches. Advances in technologies allow the government to search, listen, and record conversations without leaving much of a footprint this is not to say that the conduct if valid. It just means it is extremely difficult to discovery an illegal search. Many police officers justify this illegal search and violation of the Fourth Amendment as getting the “bad guy.” The problem is this leads to sloppy and lazy police investigation that puts the entire case at issue for dismissal.

Police agencies and prosecutors have obtained legal warrants that resulted in convictions for years without issue. Thus, the warrant requirement does not prohibit police investigations, arrests, or convictions. It is our protections against unreasonable contact and illegal search by the government. It also protects our First Amendments rights to privacy.

Warrants Requirements

An officer must develop probable cause to believe that continual criminal activity is on going. Based on a sound and legal investigation the officer then presents this evidence to a judge. If a judge believes that probable causes exists to issue a warrant, then the officer may listen in to phone calls, read email, search a cell phone, or computer.

If obtained, a warrant must be specific, limited in scope, name the items to be searched, and based on probable cause otherwise it could result in an illegal search.

What are Your Rights?

You have a Fourth Amendment Right to be free from unreasonable governmental conduct. You have a right to privacy in your things, belongings, and home. This does not mean all conduct is prohibited but only that which is unreasonable. The justification for a surveillance policy for the National Security Administration is not extended to all law enforcement agencies. Meaning local cops do not have the right to listen in to phone conversations, read your emails, and/or other surveillance methods. This does not mean to say that it is not happening, what it means is that if it does your rights were violated.

This post seeks to give information on warrants and governmental searches and seizures. For more information or to discuss your specific case, please contact us directly at (303) 747-4686 or click CONTACT US.

Posted by Laurie Schmidt | in Assault, Uncategorized, warrant | Comments Off on Is It an Illegal Search for Police to Listen to Calls and Read Emails?

If you are arrested for suspected DUI or DWAI, you should be read Colorado’s Express Consent Law. This means that if an officer has probable cause to arrest you, you must submit to a chemical test. For alcohol DUI breath test blood test are the options. If you don’t choose a test, it would be deemed a refusal. Refusals can result in your licenses being revoked for one year by the DMV; however you may qualify for a restricted license after 60 days.

You also do not have a right to counsel before deciding what to do: blood, breath, or refusal the test altogether. Demanding to talk to a DUI attorney before deciding if you will take a test will be considered a refusal by the cops.

You may have been asked to take a preliminary breath test while you were in the field or with the officer. This test result is not admissible in court and would not count as the required test. You have a right to refuse to take this test and it would not affect your license.

Which is better in a DUI breath test blood tests, before the differences in the tests there are different laws for alcohol DUI / DWAI and Drug DUI/DWAI.

Alcohol Test

An arrest for suspected alcohol DUI or DWAI in Colorado means that you must submit to either a test of your blood or breath (DUI breath test blood test). This is your choice; the officer cannot make it for you or change your choice, unless there is an emergency. You also cannot change your choice, meaning if you say breath, you must cooperate and take the breath test, you cannot later change your test to blood. This will be deemed a refusal.

Drug DUI or Drug and Alcohol DUI

There are different laws for driving under the influence of drugs or drugs and alcohol. Then you must consent to either a blood, urine, or saliva test. The choice is the officers and not yours. The difference is how the legislatures has written the statutes; it has nothing to do with your rights.

Blood Test

If you chose a blood test, you can expect to receive results several weeks or even months after the arrest date. This could mean that the DMV would take no action on your license until the results are submitted. Blood results are not 100% reliable. There could be issues with the sample itself, the machine used to analyze the blood, or the technician could have acted in a way that would contaminate the sample.

Breath Test

If you submit to a breath test, you will have immediate results. If the result is over a .08, then the DMV will immediately be notified and you would have only 7 days to ask a hearing to challenge any licenses suspension. Breath testing devises, like any machine, can be wrong or broken and there could be defenses available to you. Potential issues with a breath test could be from operator user to a failure in the device itself.

Colorado uses the Intoxilyzer I-9000. This is a relatively new machine currently used in only two states, Colorado and Georgia.

We appreciate you taking the time to read this post on a DUI breath test blood test. We invite you to contact us for more information or a free case review by call ing (303) 747-4686 or click FREE INFORMATION.

The Fourth Amendment protects you against unreasonable governmental contact. Today, the U.S. Supreme Court, in a key decision, held that you have a right to privacy and to be free from unreasonable search and seizure of your cell phone, including smart phone. In a unanimous decision the Court held that a cop must have a warrant before they can search your cellphone. Many believe that this ruling would also include tablets and I-pads.

What this means is that the cops cannot just take your cell phone and start looking at who you called, texted, or emailed. The cop is required to have a judge issue a warrant that is based on probable cause before any such search is conducted.

What about non-cops, such as friends and family? Sorry, the Fourth Amendment protects only against unreasonable governmental contact not your friends and family. Governmental contacts are law enforcement, the prosecution, border patrol and good rule of thumb would be anyone who works for the government on any level, town, city, state, feds.

DOES THIS MEAN THE COURTS CAN NEVER SEARCH MY CELL PHONE?

Not necessarily. Many times officers will simply ask you for permission to look at your phone contacts, histories, or text messages. If you allow them to or give them permission to see your phone, it will take any search outside protections of the Fourth Amendment because the courts will consider it to be consensual. Meaning you agreed to waive the warrant requirement and allow the cop to search your phone. The cops are not required to read you Miranda before they ask if they can see your phone or tell you that you have a constitutionally protected right to say no.

A good rule of thumb is: if the cop is using words of permission, no matter the inflection or tone, you have a right to say no. An example could be: May I see the phone or how about you let me look, or let’s just clear this up now, or you can just let me see it; otherwise, I’ll go and get a warrant and keep you here longer. The purpose of the warrant is to disallow the officer from conducting a fishing expedition, if they will seek a warrant or even get a judge to sign it, are unknowns that you don’ t know at the time.

We hope that this post on the Fourth Amendment has been informative. If you believe that your Fourth Amendment Rights have been violated, contact us today for a free case evaluation at (303) 747-4686 or complete a request for information.

As things are rapidly changing with the use, possession, and enforcement of marijuana laws in Colorado there tends to be a lot of misinformation about Marijuana DUI’s. The first misconception is in regards to red cards or a medical marijuana recommendations. Have a valid medicinal marijuana card is not a get out of a DUI free card. Showing or telling the officer you have a red card would most likely get you arrested, charged with a Marijuana DUI and you could go straight to jail. This is because if you tell the officer you have a red card, the next logical question would be if you recently smoke or ingested any marijuana. Admitting to using marijuana hours before the stop could give the officer enough probable cause to arrest you for suspicion of driving under the influence of Marijuana. Click the following line for more information on Drug DUI in Colorado.

Even if you have a valid Red Card that is not a defense to a Marijuana DUI. The law is clear, if you are too impaired to drive due to drugs, alcohol, or marijuana, you should not be operating a vehicle. Most cops tend to treat marijuana just like alcohol, any amount in your system would impair your ability to drive. The problem with this type of thinking is that unlike alcohol; just having some TCH in your blood does not correlate to impairment as it relates to a Marijuana DUI. TCH can stay in your blood or body tissues for months after use. There have been documented studies that have shown TCH in someone’s body for as long as six months. This is not true for everyone and one of the difficulties with Marijuana DUI prosecution is that each person will metabolize and eliminate marijuana at a different rate, there is no consistent.

You Must Submit to a Blood, Urine, or Saliva Test if You Are Arrested for Marijuana DUI; or You May Loose Your License

If you are arrested for suspected Marijuana DUI, you must submit to either a test of your blood, urine, or saliva and it is not your choice; but the officer’s choice. If you refuse such a test, your license may be revoked by the DMV. After the test and immediately upon release, contact a DUI attorney in your area to start them working on your defense. Marijuana DUI’s are very specific type of cases that need a skilled and knowable attorney.

We hope that this post on Red Cards and Marijuana DUI’s was helpful to you. Should you have any questions or like a free consultation with Ms. Schmidt, please contact us directly at (303) 747-4686 or by clicking here.

There are a lot of thoughts on how to beat or get out of a DUI – best way that I know as a DUI defense attorney, is to not drink and drive. Over the years, I have received a lot of questions about misinformation and DUI charges in Colorado. This post seeks to show why some of the more common myths are untrue. To discuss your case – contact us at (303) 747-4686 or click here.

Myths about DUI charges

MYTH 1: If the keys are not in the ignition, I can not be charged with a DUI

FALSE: The cops could still arrest you for DUI, even if the keys were not in the ignition. The cops will ask you if you drove, will look at the position of the driver’s seat, and place of the car keys (aka, if they are in your possession –that will be used to show that you drove

MYTH 2: If I’m arrested for DUI and I refuse to take a blood or breath test, that cannot be used against me.

FALSE: If the cops have probable cause (which is a very low standard) to arrest you for DUI in Colorado you must consent to either a blood or breath test. If you refuse a test, your licenses will be suspended for one year by the DMV. In addition, the government will use the fact that you refused a test to show that you were trying to hide the alcohol in your system.

MYTH 3: I MUST take the roadside tests if requested by the officers.

FALSE: You do not have to answer any questions or complete any FST or Roadside tests. These tests are designed for you to fail. You will never perform them satisfactorily and this is more ammunition for the government to use against you. For more information on roadsides, check out our FST posting.

MYTH 4: I should admit that I have one or two drinks

FALSE: You have a constitutional right not to self incriminate. This means that you do not have a duty to tell the officers that you had drunk any alcohol or that you only had 1 or 2 beers. In fact, you don’t need to answer any of the officers questions. FYI – one or two beers is the top response that officers generally get and rarely does a blood or breath test confirm just one or two.

MYTH 5: If I’m not seen driving, I cannot be charged with DUI

FALSE: As stated above, there are many ways the government will try to show you and not someone else was driving. The government will use circumstantial evidence to show that you were driving. The cops will testify to such things as: no one else was around, car was warm to the touch, keys were in you pocket/hands, and possible that the seat position matched your approximate height.

If you have more questions or what to ask a question, simply contact us here. For more information about DUI penalties in Colorado, check out our DUI page.

As we are in the middle of winter snowy, icy, and slick roads as a part of our driving conditions on some days. Even driving in the most careful and cautious manner can still result in an accident. Can you really get a traffic ticket for an accident? For example, even if you are driving under the speed limit and safe for the winter conditions, you could still slip on a patch of black ice, causing a small accident with a median, guardrail, or another car. If Colorado State Patrol is called out – you would most likely get a traffic ticket for careless or even reckless driving, EVEN IF THE ONLY DAMAGE WAS TO YOUR VEHICLE. Careless driving is a four-point violation and reckless is an eight-point violation. Both are class 2 misdemeanors, assuming no injuries.

Or if you are driving in a manner consist with the expectations of the Colorado Vehicle Code – but something or someone else causes you to stop suddenly or swerve, again, resulting in a minor accident – if the cops come out you would most likely get a traffic ticket for following to close or failure to maintain lane. BUT how would an officer know if you were doing any of those activities, the resulting collision is NOT enough to prove you did or did not drive in such a manner.

If you are accused of a traffic violation as a result of careful, caution driving; but it resulted in an accident, does not mean that you are guilty of the alleged driving offense. Most times, cops believe it is their duty to write the ticket, but the standard they work on is probable cause. The government still has the burden to prove its case beyond a reasonable doubt.

If I Am in a Small Accident- What Do I Have To Do and Can I Avoid a Traffic Ticket?

If you are in a minor accident, where there is damage to another person’s property, car, fence, ECT; but NO INJURIES, C.R.S. 42-2-1602 requires that you do the following:

Stop your car at the scene (yes that’s in the code as an element)

Exchange the following information (C.S.R. 42-2-1603):

Name

Address

Vehicle registration number

Show driver’s license if requested

If you hit a parked car- you are still required to leave your information in a place that the owner can readily find it, AFTER first trying to contact the owner or user of the vehicle. See C.S.R. 42-4-1604

Do We Have to Contact the Police If It’s a Minor Accident?

Yes, C.S.R. 42-2-1606 requires or puts a duty on you to report any accident. Further the DMV requires a written accident report if the property damage exceeds $100.00. BUT your duty is only to report that there was an accident, you do not have to admit anything to the cops that would subject you to a traffic ticket. You can tell officers that proper information was exchanged and ASK to be dismissed from the accident scene.

You may think that just because the cops came out and eventually arrested you for a domestic violence related charge that you may not have any defenses available. After all, the cops came out, took statements, arrested you , and took you to jail. The cops could not have gotten it wrong, correct? NOTHING COULD BE FURTHER FROM THE TRUTH. As a domestic violence defense attorney – there are many outside factors and investigative issues that will affect who is arrested and potential defenses that may be available. This post is meant to be an informational guide to domestic violence arrests. For more information or to review your specific case, please contact us directly at (303) 747-4686.

Not a fair and impartial investigation

Once a person calls 911, the information stated in that call is automatically transmitted to the officer BEFORE they arrive on scene. So, if someone calls and says that a person assaulted them, the officer hears this information and is already thinking that the other party is at fault, even before they arrive. This means that when the officers say, “I’m just trying to see what happened” or get the full story, it is not true. The officer is simply trying to build a case against the person he or she thinks is at fault – based on the first information they get. This is before they talk to any witnesses or parties involved.

Officers often do not understand their role or mistaken belief of the law

Many officers will say that any time, regardless of the facts, if the officer responds to a domestic violence call it requires them to arrest someone. This is completely false and just shows that the officer does not understand the law and/or his or her duty in law enforcement. Often times, the cops will actually apologize for arresting a person – but try to hide behind a statute and police policy that is not understood. It does not mean that the prosecution will not file criminal charges against you, it means that you will be arrested, spend time in jail, and have to defend the charges.

Reporting party untruthfulness

A person who called the cops could have made up what happened or minimized his/her involvement in the fight – in order to get the other party in trouble and/or arrested. There could be many different motives for this type of behavior ranging from anger, revenge, to gaining an advantage in a custody hearing. This is not a reason for the government to drop the case against you- even if the other person does not want to press charges.

Self-Defense

Sometimes a defense to the charges is that you acted in defense of yourself, your property, or another person. This can be a strong defense to the charges and should not be overlooked by your attorney. This defense can be used if your conduct was to restrain a party from harming themselves or others.

Report party or victim not desirous of prosecution

Often times, when tempers subside, the alleged victim and/or reporting party may not want criminal charges to be filed against the other person. Even if this wish or want is communicated to the cops and/or prosecuting attorney- charges would most likely go forward. Many government attorneys feel that any time a person is arrested for domestic violence, he/she must receive a punishment.

Any arrest or charge of domestic violence can be devastating for you and your family. This is not the time to try and navigate the criminal justice system. Your future and reputation can be called into question and may be at risk. Contact a domestic violence attorney to represent you and fight for your vindication.

Thank you for visiting our post on Domestic Violence Defenses – contact us directly for more information at (303) 747-4686 or by clicking here.

Number one way to avoid a DUI – don’t drink and drive, especially over a holiday! There will be more cops on the street the next few days, especially at night. Don’t let your mug shot be of you as a bumblebee! Denver DUI enforcement and surrounding police agency’s are likely to step up DUI patrols; this could include sobriety DUI checkpoints. If you are stopped after your Halloween festivities, here are some brief DUI reminders from Denver’s DUI attorney:

Provide the officer with your license, insurance, and registration

Do not drive if you do not have a properly licensed car and/or license – an expired tag is a valid reason to be pulled over. This can easily turn from a simple ticket to a Denver DUI.

You do not have to admit that you drank any alcohol – don’t lie, but you do not have to tattle on yourself

You do not have to take or complete any of the field sobriety tests or road tests

You do not have to get out of your car, unless you are being arrested and the cop orders you out.

You do not have to roll your window down-the officer is trying to determine if he can smell alcohol on you

You do not have to look at the officer, he/she is conducting a test to determine if you may have drank alcohol to build a case to arrest you for DUI

The officer does not have to read you your Miranda rights until you are arrested (they will not read you your rights until you in the car or at the station)

You must submit to a blood or breath test IF you are arrested for Denver DUI. Failure to do so may result in your license being revoked for one year.

You do not have a right to talk to an attorney before you take a blood or breath test after an arrest

If you or a friend are arrested for Denver DUI – contact us immediately. We offer free consultations and will take the time to break down your case and evaluate the evidence against you. Contact us today: (303) 747-4686 or simply click here.

Posted by Laurie Schmidt | in DUI arrest, DUI Post | Comments Off on Denver DUI Attorney tells you how to avoid a DUI during Halloween